Goganbhai Karabhai Modhvadiya vs Om Cement Products
2023 Latest Caselaw 7418 Guj

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      C/CA/1498/2023                             ORDER DATED: 07/10/2023

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     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


     R/CIVIL APPLICATION (FOR LEAVE TO APPEAL) NO.
                       1498 of 2023

       In F/LETTERS PATENT APPEAL NO. 28945 of 2023

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           GOGANBHAI KARABHAI MODHVADIYA
                               Versus
                    OM CEMENT PRODUCTS
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Appearance:
MR NK MAJMUDAR(430) for the Applicant(s) No. 1,2,3,4,5
 for the Respondent(s) No. 1,2,4,5,6,7
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP
for the Respondent(s) No. 3
MS HETAL PATEL, AGP for the Respondent(s) No.
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS.
      JUSTICE SUNITA AGARWAL
      and
      HONOURABLE MR. JUSTICE ANIRUDDHA P.
      MAYEE

                          Date : 07/10/2023

                      ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS.

JUSTICE SUNITA AGARWAL)

1. The instant application has been filed seeking leave to institute

appeal against the judgment and order dated 19.07.2023 passed by

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C/CA/1498/2023 ORDER DATED: 07/10/2023

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the learned Single Judge, disposing of the writ petitions filed by the

respondent Nos. 1 and 2 herein seeking for allotment of industrial

plot. The observations in the order impugned that there lies an

encroachment in the land bearing Survey No. 533 (Old No. 250),

situated at Village: Lakhabaval, Taluka: Jamnagar and the direction

issued by this Court for removal of the said encroachment on the

assurance given by the respondent - State in the written instructions

supplied by the Mamlatdar, Jamnagar (Rural), is the reason for filing

of the instant application.

2. It is contended by the learned counsel for the applicants that

the applicants are in possession of the land in question for a period

of more that 30 years and have raised their constructions over

Survey No. 533 (Old No. 250), Village: Lakhabaval, Taluka:

Jamnagar. The writ petition, originally, was filed with a prayer

seeking for quashing of the orders issued by the respondent No. 7

therein namely Gujarat Industrial Development Corporation (GIDC),

refusing No Objection to the writ petitioner and thus, seeking for

allotment of Survey No. 140, situated at the village in question for

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C/CA/1498/2023 ORDER DATED: 07/10/2023

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industrial purposes. However, by way amendment, the prayer No.

18(AA) was added, which reads as under:

"This Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, to the respondent Nos. 1 and 4 to allot the land bearing Old Survey No. 250 (New Survey No.

533) of village Lakha Bawad, Takuka and District Jamnagar to the petitioners for industry purpose in the alternative any other land may be allotted for the purpose of industry near to Jamnagar city."

2.1 It is submitted that there was no occasion for the learned

Single Judge to issue directions to the respondents to remove

encroachment on the aforesaid prayer, that too, when the

petitioners / occupants were not impleaded as party in the writ

petition. The submission is that the judgment and order dated

19.07.2023 having been passed behind the back of the applicants, is

liable to be set aside.

3. On an pointed query made by the Court as to the right of the

applicants to retain possession of the land in question, the copy of

order dated 29.04.2023 has been placed before us, whereby the

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C/CA/1498/2023 ORDER DATED: 07/10/2023

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Collector, Jamnagar had rejected the prayer made by the petitioners

for regularization of their possession over the land in question

namely Survey No. 533 (Old No. 250), for residential purposes. On

the asking of the Court, learned counsel for the applicants admits

that the order passed by the Collector has not been challenged by the

applicants herein. Moreover, a perusal of the order dated 29.04.2023

passed by the Collector indicates that the land in question namely

Survey No. 533 (Old No. 250) has been identified as a land for

industrial purpose and is needed for industrial development of the

area in question, which is within the jurisdiction of the GIDC i.e.

Gujarat Industrial Development Corporation.

4. Having noted the above, we find that there is a complete lack

of details in the application with regard to the land in question being

allotted to the GIDC and allocating it for industrial purposes. In the

absence of any challenge to the order of rejection of the claim of the

petitioner for regularization of their possession, passed by the

Collector, the prayer seeking leave to file appeal against the order of

the learned Single Judge cannot be entertained.

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        C/CA/1498/2023                              ORDER DATED: 07/10/2023

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5. For the aforesaid, we do not find any merit in the prayer made

by the applicants. The application is accordingly rejected. It is,

however, kept open to the petitioners to take recourse to the remedy

available to them under law.

[ Sunita Agarwal, CJ. ]

[ Aniruddha P. Mayee, J. ] hiren /1